Praise for Failed Evidence

"...A masterful expose of both the flaws in our criminal justice system and the reasons many police and prosecutors are unwilling to correct them."
Professor Christopher Slobogin, Vanderbilt University Law School

Mnookin begins by conceding that support for electronic recording of interrogations is growing in law enforcement; “firsthand experience with recording tends to turn law enforcers into supporters.” And recording benefits defendants as well, “because the very presence of the camera is likely to reduce the use of coercive or unfair tactics in interrogation.” But here’s her concern:

[A]ccording to recent research, interrogation recording may in fact be too vivid and persuasive. Even seemingly neutral recordings still require interpretation. As advertisers and Hollywood directors know well, camera angles, close-ups, lenses and dozens of other techniques shape our perception of what we see without our being aware of it….When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.

First thing to notice: Professor Mnookin is not saying that recording interrogations is a bad idea — quite the opposite. She says, correctly, that recording helps both law enforcement and defendants.

Second, Mnookin says that even recording interrogations under the best protocol imaginable does not guarantee the elimination of false confessions. Remember that the (false) confessions of the Central Park Five were recorded. Recording won’t cure all ills.

Third, the research she points to that describes the problem of “camera perspective bias” contains the solution: a requirement that the recording must include both the interrogator and the suspect in the picture.

The take away: recording interrogations represents a positive development, but we can’t just flip on the recording equipment. We need to have proper protocols for this practice. For example, we must require recording the whole interrogation, not just the last part in which the suspect confesses. (I’ve made that argument here.) Adding a requirement to record both interrogator and suspect makes all the sense in the world.

On May 28, 2014, the Pennsylvania Supreme Court published two opinions about whether juries could hear from experts. InCommonwealth v. Walker, the Court said an expert could tell the jury about the traps and weaknesses involved in eyewitness witness testimony. But in Commonwealth v. Alicia, the Court said an expert couldnot tell the jury about problems with the truthfulness of confessions. Each opinion featured a different 4-2 vote among six of the Court’s Justices.

This juxtaposition seems so bizarre that the press in our state has noticed. How does one court, on one day, publish two opinions on virtually the same issue, and end up facing in two completely opposite directions?

The explanation that jumps out from the opinions is the recognition of research and science. In the Walker majority opinion, Justice Debra Todd discusses how much scientific work on eyewitness testimony has taken place in the last twenty years, since the Court last examined the issue. In those decades, she says, “advances in scientific study have strongly suggested that eyewitnesses are apt to erroneously identify a person…when certain factors are present, ” and she cites the 2011 opinion of the New Jersey Supreme Court in New Jersey v. Henderson, widely regarded as one of the leading cases on the subject. The scientific consensus is strong: “it is beyond serious contention that the statistical evidence on eyewitness inaccuracy is substantial…” Over the course of the last thirty years, forty-four states have recognized this scientific work and decided that trial courts may allow experts to testify about the problems of eyewitness identification. Ten of the eleven U.S. Courts of Appeals have done so as well. (False eyewitness identifications have occurred in almost seventy-five percent of all DNA-based reversals of wrongful convictions.) Thus Justice Todd and the other Justices in the majority in Walker said that Pennsylvania must recognize the evidence that science has brought to bear.

In contrast, what does the Alicia opinion say about the science on the interrogation of suspects, and how various interrogation techniques may lead to false confessions? (False confessions have occurred in about twenty-five percent of all DNA-based reversals of wrongful convictions.) Considerable scientific consensus exists on these issues as well; the leading scientists who work on the issue of false confessions published a standard-setting white paper, “Police-Induced Confessions: Risk Factors and Recommendation” for the journal Law and Human Behavior five years ago. Somehow, this scientific work never even comes up in the Alicia opinion. It is as if the research on false identifications simply does not exist.

Chief Justice Ronald Castille is at least consistent in these two cases: he wants no experts in court on either eyewitness identifications or confessions, so he dissented in Walker and joined the majority in Alicia. Castille’s dissenting opinion in the Walker case gives us some insight into the thinking of those who want none of this science before the jury. In his dissent, Chief Justice Castille scorns the very idea that there could be real scientific work on these subjects. Indeed, he puts the words science or scientific in derisive quotation marks eight times in just the first three pages of his opinion. While he admits that “a properly trained chemist can usually reliably explain the chemical composition of a substance,” science about human beings cannot claim any reliability: “studies of human beings, human nature, human perception, and human recollection inevitably have a heavy dose of subjectivity.” Justice Castille’s position betrays a strong misunderstanding of what science is, and of the process of doing scientific work and of using the scientific method to test a hypothesis. The real question is not whether we are dealing with so called “hard science” — work done with beakers and bunsen burners. Rather, the question is whether the work is done reliably and rigorously, according to the scientific method, and in accord with principles and protocols that protect against human biases in the laboratory. So for now, juries in Pennsylvania will have to do without the best scientific knowledge on why we might have false confessions.

But, even more important, the issue of whether experts can testify on these subjects is not a new one; courts in most jurisdictions resolved this issue years ago. Instead, every institution that forms part of our criminal justice system in PA should be focused on prevention: establishing protocols for police to follow that will keep dangerous mistakes eyewitness testimony and interrogation from happening in the future. The research is there; the best practices are known. Nevertheless, we remain stuck in the past, arguing about expert witnesses.

In my last post, I discussed the significance of the new US DOJ policy, effective July 11, that creates a presumption that all federal law enforcement agencies — the FBI, the DEA, ATF, and all the rest, will record interrogations of suspects. This will put these federal agencies on par with the several states and many hundreds of state and local departments that have recorded interrogations for years, as a matter of course.

I commented that, without access to the DOJ memorandum itself, there was no way to know whether the new policy would require recording of the whole interrogation, or just part of it (usually, the part that shows a confession, but not what lead up to it). I promised to post again when I had more information.

The full DOJ memorandum is now public, and it requires that the agency records the full interrogation: not just the confession, but the whole session. Here’s what the memorandum says:

I. g. Scope of Recording. Electronic recording will begin a soon as the subject enters the interview area or room and will continue until the interview is completed.

For proponents of recording interrogation, this is good news. A partial recording could only give a partial picture of what went on in the interrogation room. At worst, a partial recording could be downright misleading; at the very least, a recording that only contained the confession at the end of the interrogation would tell us nothing about the context — about how the police obtained the interrogation. So the Scope of Recording requirement is a very important part of an effective recording system.

According to reports this morning by the Arizona Republic, National Public Radio, and other outlets, the U.S. Department of Justice has decided that federal law enforcement agencies, including the FBI, will electronically record interrogations of people in custody. This will bring the FBI, DEA, ATF and other federal law enforcement agencies into line with the best practices in law enforcement that have been adopted (in whole or in part) in 20 states and hundreds of individual U.S. police departments, as well as a number of other countries.

Former members of federal law enforcement call this change a “radical departure” and the end of “an insane policy.” These descriptions seem correct, since the FBI has been one of the law enforcement agencies most resistant in the U.S. to change on this issue. The new policy — a presumptive requirement, with exceptions for imminent, life-threatening danger and for national security intelligence-gathering interviews — will take effect on July 11.

(One important fact to note: the information available so far does not indicate whether the new policy will require recording of the entire interrogation — that is, beginning with the administration of Miranda warnings and continuing through to the end of the interrogation. This requirement is absolutely necessary, because without it, interrogations will contain only the confession of the suspect at the end, without showing its full context. I am looking for more information on this now and will post again when I learn something about it.)

As recently as 2006, the FBI said in a confidential memorandum that agents could not record interrogations without the express permission of a senior supervisor. According to the memorandum, agents should generally not record interrogations for several reasons, among them:

[T]he presence of recording equipment may interfere with and undermine the successful rapport building interviewing technique which the FBI practices…[Additionally,] perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants.

As to the first idea, there is no evidence to support the idea that recording would interfere with interrogations. According to a 2004 study by Thomas Sullivan, former United States Attorney for the Northern District of Illinois, and his colleagues, none of the hundreds of law enforcement agencies surveyed reported that recording interfered with officers’ ability to interrogate suspects. As for the idea that certain “perfectly lawful…techniques do not always come across” to jurors as proper, that may be because, lawful or not, any juror can see how these techniques — for example, lying to suspects about the result of supposedly iron-clad forensic evidence or polygraph results — smack of deep unfairness and exert a degree of pressure that may — and sometimes does — resulted in false confessions.

As readers of my book Failed Evidence and this blog know, recording suspect interrogations is one of the most important safeguards against wrongful convictions and abuse during interrogations. And law enforcement agencies that have the longest experience with recording back it enthusiastically. For example, Minnesota has required recording of interrogations since 1994. In a 2002 article that appeared in the Washington Post, U.S. Senator Amy Klobuchar, who was then the elected prosecutor of Hennepin County, Minnesota, argued that “videotaped interrogations have strengthened the ability of police and prosecutors to secure convictions against the guilty. At the same time, they have helped protect the rights of suspects…”

The DOJ changed the policy with no fanfare — indeed, without even any announcement. Nevertheless, it represents an undeniable step in the right direction. The facts of any recorded interrogation will mostly be beyond dispute. Needless litigation and motions will be avoided, and cases will move through the system (and usually toward guilty pleas) more rapidly. The worst abuses will be curbed, and a better system will result.

This is a significant fact. But two other things in the report got less notice and deserve more.

First, for most people, “exoneration” is synonymous with “DNA exoneration.” This is how the world looks, whether on television (think ofCSIand its many clones) or in any news source. But this view doesn’t reflect the real world. As the report points out, only about 21 percent of the exonerations in 2013 involved DNA (p. 6). Despite the impression one gets from the media, this has always been the case; of all of the exonerations since 1989, 72 percent were not based on DNA. And that difference seems to be increasing. In both 2012 and 2013, non-DNA exonerations increased significantly, while DNA exonerations decreased (p. 12).

The other fact that many in the media did not notice: for the last two years, the percentage of all exoneration cases resolved with the cooperation of the police or prosecutors has risen dramatically. In 2012, almost half of all the cases featured cooperation of the police or prosecutors in re-examining cases, leading to exoneration; the average percentage in all the years before (1989-2011) did not reach 30 percent. The trend continued this year, with almost police or prosecutors cooperating in almost 40 percent of all exonerations. (A few media organizations, such as Fox News, NPR, and the Christian Science Monitor, featured this fact in their headlines and/or stories.)

This is a very welcome and important development. While some exonerations have always come about with law enforcement cooperation, this was not the trend. Despite assurances from Scott Burns, executive director of the National District Attorneys Association that “we always did that, we just didn’t” have a name for the process (see his quote here), the data on the last two years do show a greater willingness to re-examine old cases than in years past. According to Samuel Gross of the University of Michigan Law School, who edits the Registry, “the sharp, cold shower that DNA gave to the criminal justice system has made us realize that we have to re-examine” closed cases whether with DNA or not. That idea appears to be sinking on a much wider basis. And that is all to the good.

The International Association of Chiefs of Police (IACP) is one of the leading organizations for law enforcement professionals in the U.S. and around the world. I regularly turn to their model policy and training documents when working on those issues for police agencies. So it’s a big deal to see their new report, prepared in conjunction with their partner, the U.S. Department of Justice Office of Justice Programs, announcing that their new effort in which they will play a leading role in fixing the problems in police investigation that cause wrongful convictions.

The report, titled, “National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions,” takes a full view of the issues that must be addressed to avoid convicting the wrong people, and announces a series of recommendations designed to bring the goal within reach. It is based on work at a summit of people from IACP, DOJ, and a host of experts. In a preliminary statement in the report, the President of the IACP and the Assistant Attorney General for the Office of Justice Programs, outlined how the report came to be and what it does.

This event gathered 75 subject matter experts from all key disciplines to address and examine the causes of and solutions to wrongful convictions across the entire spectrum of the justice system. Summit participants worked diligently during this one-day intensive event to craft 30 focused policy recommendations that guide the way to our collective mission to continually improve the criminal justice system. The summit focused on four critical areas: (1) making rightful arrests, (2) correcting wrongful arrests, (3) leveraging technology and forensic science, and (4) re-examining closed cases. The 30 resulting recommendations directly address these areas and lay a critical foundation for required changes in investigative protocols, policies, training, supervision, and assessment.

The report is absolutely essential reading for anyone interested in wrongful convictions and what can be done to correct them. Readers of my book Failed Evidence will also recognize that the emergence of this consensus at the top of the law enforcement profession is exactly what I have called for: “Police and Prosecutors Must Lead the Effort” (pp. 158-159).

In mid October, police in New York City announced that they had solved the mystery of the “Baby Hope” case: at last, they had the killer of a four-year-old child whose body had been found in 1991, 22 years ago. And the accused killer, Conrado Juarez, had confessed.

Days later, Juarez recanted the key part of his confession. He said that under intense pressure by police during a long interrogation, he had lied: he had not killed the child. He had only helped his sister dispose of the body at her request. He said that he had lied about killing the little girl because “after a while and after so much pressure [from police], I accepted it and said what they wanted,”

The accused may have been telling the truth when he said he killed the victim, or when he said that he actually didn’t. I certainly don’t know the answer to that. But one thing that would help to resolve the question would be a video and audio recording of the entire interrogation, from start to finish. A judge or jury could then look at the entire thing and decide whether the accused was coerced or not. And over a year ago, NYPD Commissioner Ray Kelly announced that, after a long pilot project, the NYPD would begin recording all interrogations in homicide, felony assault, and sexual assault cases.

But in this case, that was not done. Instead, a recording of only the confession itself — a statement of guilt by Juarez at the end of the process — was made. No recording was made of the questioning that lead up to it. So we have no record of how police got to the point of getting the admission of guilt. And that leaves the confession in dispute: the accused will argue that he was coerced, and the police will say they did nothing to coerce him. But there will be no recording for a judge or jury to see.

Why did this happen? According to the NYPD spokesman quoted in media reports, “only 28 detective squads — there are more than 76 across the city — have an interview room set up with recording equipment.” The interrogation did not take place in one of those 28 squads. Getting the equipment into all of those police facilities just takes time, and so far, the Department remains a long way from completely implementing Commissioner Kelly’s order. (It is worth noting that the detectives in the Baby Hope case did not take the suspect to one of the buildings that already has the equipment necessary to record.)

Or maybe it’s something else else. According to Michael Palladino, the head of the NYPD’s detectives union, it’s better if interrogations don’t get recorded. “There are certain tricks of the trade, I should say, that I think should not play out in front of the jury.” But the cost of hiding these “tricks” is that we now have uncertainty in the Baby Hope case. And, after so many cases of wrongful convictions including false confessions — they show up in 25 percent of all DNA-based exonerations — there is a loss of public confidence.

Here’s hoping that things move faster as the NYPD transitions to the recording of confessions. Assuming that they have the real killer of Baby Hope, we all want the guy off the street. We don’t need uncertainty introduced because there’s resistance to recording.